Bennett v The Queen

The applicant, Bennett, sought special leave to appeal to the High Court of Australia against a decision of a lower court. The case concerned charges of abduction and rape under the Tasmanian Criminal Code Act 1924. The Crown's case was that the complainant consented to travel with the accused and his father, but the accused and his father then drove off a bush track, leading to disputed circumstances surrounding two acts of intercourse.

The central legal issues before the High Court were twofold. Firstly, the applicant contended that the case raised a controversial question regarding the identification of the mental element required for the crime of rape under the Tasmanian Criminal Code. Secondly, the applicant argued for the applicability of the principle established in *He Kaw Teh*, which presumes that *mens rea* is an element of a statutory offence even if the offence is defined solely by its external elements.

The applicant's argument, as presented, relied on observations from *He Kaw Teh* and other cases, suggesting that a mental element is typically implied in statutory offences. Specifically, concerning rape, the applicant highlighted the difficulty in ascertaining the legislature's intention regarding the required state of mind, particularly in relation to non-consent, and noted that the mental element in Tasmanian rape cases, if *Snow*, *Arnol*, and the current case are correct, relates to a voluntary and intentional act of penetration. The applicant submitted that these issues were sufficiently controversial to warrant the grant of special leave.